Citation NR: 9726860
Decision Date: 07/31/97 Archive Date: 08/06/97
DOCKET NO. 96-39 380 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to restoration of a 40 percent evaluation for
chronic lumbar muscular strain, with history of sciatica.
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1982 to
August 1987.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 rating decision of the
Portland, Oregon, Department of Veterans Affairs (VA)
Regional Office (RO). That rating decision reduced the
veteran’s disability rating for his service-connected low
back disability from 40 percent disabling to 20 percent
disabling, effective from July 1996.
REMAND
According to the records on file, the veteran was examined by
the VA for disability compensation purposes in December 1995.
In April 1996, based upon the findings of this examination,
the RO reduced the rating for her service-connected low back
disability from 40 to 20 percent disabling.
The veteran was afforded another VA examination in July 1996.
A review of the report of this examination shows that she was
examined by a certified physician's assistant rather than a
physician. The examination also did not include X-rays of
the low back. Therefore, the Board feels that the veteran
should be afforded another VA examination to determine the
current severity of her service-connected back disability.
The Board also notes that 38 C.F.R. § 4.10 provides that in
cases of functional impairment, evaluations must be based
upon lack of usefulness of the affected part or systems and
38 C.F.R. §§ 4.40, 4.45 and 4.59 require consideration of
functional disability due to pain, weakened movement, excess
fatigability, incoordination, or pain on movement. These
requirements enable the VA to make a more precise evaluation
of the level of disability and of any changes in the
condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594
(1991).
The VA has the duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The
United States Court of Veterans Appeals has held that the
duty to assist the veteran includes obtaining medical records
and medical examinations where indicated by the facts and
circumstances of an individual case. Littke v. Derwinski, 1
Vet.App. 90 (1990).
On the basis of the above and pursuant to 38 C.F.R. § 19.9,
the Board determines that further development of the evidence
is essential for a proper appellate decision and, therefore,
remands the matter to the RO for the following action:
1. The RO should ask the veteran to
provide the names, addresses, and
approximate dates of treatment of all
health care providers, VA and private,
who have treated her for her low back
disability since July 1996. After
securing any necessary authorizations,
the RO should request copies of all
indicated records which have not been
previously secured and associate them
with the claims folder. Failures to
respond or negative replies should be
noted in writing and also associated with
the claims folder.
2. The RO should schedule the veteran
for comprehensive VA orthopedic and
neurology examinations, administered by
medical doctors, to determine the
manifestations of her service-connected
low back disability. All indicated
tests, studies and X-rays should be
performed. The report should set forth
all objective findings regarding the low
back disability, including complete range
of motion measurements. The examiner
should obtain a history and note any
objective findings regarding the
following: functional loss due to pain,
weakened movement, excess fatigability,
incoordination, and painful motion or
pain with use of the low back. The
report should also address the effect of
the veteran’s current low back disability
on her ability to perform routine
functions and detail whether there is
evidence of persistent symptoms
compatible with sciatic neuropathy with
characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other
neurological findings with little
intermittent relief. The claims folder
and a separate copy of this remand should
be made available to and reviewed by the
examiner prior to the examinations. The
RO should inform the veteran of all
consequences of her failure to report for
the examination in order that she may
make an informed decision regarding her
participation in said examination.
3. After the above examinations are
conducted, the RO should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
reports of examinations. If the reports
do not include sufficient data or
adequate responses to the specific
opinions requested, the reports must be
returned to the examiners for corrective
action. 38 C.F.R. § 4.2.
4. Thereafter, the RO should
readjudicate the issue on appeal. The RO
should discuss all applicable diagnostic
codes, with particular attention to the
applicability of the provisions of
38 C.F.R. §§ 4.40, 4.45 and 4.59.
If the benefit sought is denied, then the veteran should be
provided a supplemental statement of the case which reflects
RO consideration of all additional evidence, and the
opportunity to respond. Thereafter, the case should be
returned to the Board for further appellate review. The
purpose of this REMAND is to obtain additional evidence and
ensure that the veteran is afforded all due process of law.
The Board intimates no opinion, either factual or legal, as
to the ultimate conclusion warranted in this case. No action
is required by the veteran until contacted by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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